Davis
infamously refused to issue marriage licenses to gay couples in 2015 because of
her beliefs as an Apostolic Christian. The former clerk of Rowan County
was jailed for five days as a result.

A federal judge dismissed
civil rights claims seeking damages against Davis in her professional capacity, but
allowed claims against her in an individual capacity to proceed.

Davis
argued at the district court that the gay couples’ right to marry was not
clearly established at the time she denied them licenses, but U.S. District
Judge David L. Bunning disagreed.

Judge Bunning cited the landmark Supreme Court decision in Obergefell
v. Hodges, and told Davis
she had “fair warning … that her conduct was unconstitutional.”

Thursday’s arguments in the Sixth Circuit focused on both
sovereign and qualified immunity, and Davis’
attorney Roger Gannam of Christian group Liberty Counsel argued that Judge
Bunning properly determined she was a state actor and granted her sovereign
immunity for the official capacity claims.

“Davis
upheld and enforced state policy,” Gannam told the panel, adding that “she
faced a difficult situation” when determining whether to issue marriage
licenses or enforce the state’s religious freedom laws under the Religious
Freedom Restoration Act, or RFRA.

RFRA laws say that a person’s religious liberty can only be
limited by the “least restrictive means of furthering a compelling government
interest.”

U.S. Circuit Judge Helene White asked about a mandate issued
by then-Governor Steve Beshear immediately after the Supreme Court’s ruling in Obergefell
that required Kentucky
clerk’s offices to issue licenses to gay couples.

The attorney admitted the order had been issued, but that
the “availability of licenses everywhere else in the state” compelled his
client to deny the licenses in Rowan
County based on her
religious beliefs.

The argument turned to Judge Bunning’s denial of qualified
immunity to Davis
for the individual capacity claims.

Gannam said his client “chose to treat all couples the same”
by denying all marriage licenses in Rowan County, and told the panel there is
“no constitutional right to get a marriage license in your own county.”

“The fundamental right to marry was not violated,” the
attorney said.

Attorney Michael Gartland argued on behalf of the gay
couples, and disputed the lower court’s finding that Davis was a state actor when she denied his
clients marriage licenses.

U.S. Circuit Judge Richard Allen Griffin challenged the
attorney, and said that because state law controls marriage licenses, Davis acted on behalf of
the state, even when she violated her duties as a county clerk.

Judges Griffin and White repeatedly referred to Davis as a “rogue” state
actor, but maintained that her refusal to comply with state law did not render
her a county actor.

Gartland argued that Davis
implemented a new, countywide policy and was therefore a county actor when she
denied his clients their licenses.

The attorney went on to say that the RFRA gave Davis the authority to
alter the marriage license form and remove her name from the document to avoid
compromising her religious beliefs.

While such a license would not have fully complied with
state law, Gartland told the panel that a “merely defective form does not
affect the validity of a marriage” in Kentucky.

On rebuttal, Gannam disputed this point, and claimed that
the removal of Davis’
authorization was not a “clerical error” that would have kept the licenses
valid.

The Cincinnati-based appeals court also grappled with the
issue of whether Kentucky and its taxpayers
are responsible for the attorney fees incurred by the couples who filed suit
against Davis.

A federal judge ruled
in October 2017 that Davis acted “on behalf of the Commonwealth” when she
refused to issue marriage licenses to gay couples, a decision appealed and
argued by numerous parties on Thursday.

Gannam argued on behalf of the Rowan County
clerk’s office that the award of attorney fees was improper because the couples
sought “an open-ended right” for all future marriage licenses issued in the
county.

“The license is not the end of the story,” Gannam told the
panel.

He cited the 2010 Sixth Circuit case McQueary v. Conway,
in which the plaintiff was granted a preliminary injunction to protest at
military funerals.

The injunction was later repealed when Kentucky changed its laws to allow for such
protests.

Gannam argued that under McQueary, a “preliminary
injunction is typically not enough” to award attorney fees.

Attorney Gene Vance argued on behalf of Governor Matt Bevin,
and said the county is liable for any attorney fees.

“[A] local actor made a conscious policy decision,” Vance
told the panel.

Attorney Mary Ann Stewart argued on behalf of Rowan County,
uring the panel to affirm the lower court’s decision.

“Marriage is essentially and absolutely a state function,”
she said.

Stewart pointed to the mandate issued by Beshear after the Obergefell
decision, as well as a subsequent change in marriage license forms by Bevin as
evidence that the state controls the issuance of marriage licenses and is
liable for the attorney fees.

She concluded that there is no body of law that says Davis’ actions “convert
it to a county action.”

U.S. Circuit Judge John Bush also sat on the panel. No timetable has been set for the court’s decision.

Davis lost her bid for re-election in November and left office on Jan. 7.